Page No.# 1/7 GAHC010073842025 2025:GAU-AS:9744 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1102/2025 ABUL KALAM AZAD S/O LATE NURUL ISLAM, VILL- BHERALDI (PALAHARTAL), P.S.- BARPETA, DIST- BARPETA, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. R ALI, MR H A AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 28.07.2025 1. Heard Mr. R. Ali, the learned counsel for the petitioner. Also heard Mr. K.K. Das, the learned Additional Public Prosecutor, appearing for the State of Assam. 2. This application under Section 483 of the Bharatiya Nagarik Page No.# 2/7 Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Abul Kalam Azad, who has been detained behind the bars since 17.02.2025 (for the last 161 days), in connection with Tarabari P.S. Case No. 10/2025, under Section 22(C) of the NDPS Act, 1985. 3. The gist of accusation in this case is that on 15.02.2025 one Manabjyoti Bora, SI of Police had lodged an FIR before the Officer-In-Charge of Tarabari Police Station, inter alia, alleging that an information was received through reliable sources that one Prasenjit Das, has kept illegal narcotics drugs in his house for selling. A search team was constituted. During search operation in the house of the said Prasenjit Das, recovery of capsules containing Tramadol as well as Nitrazepam capsules and Codeine Phosphate cough syrup were made. 4. The learned counsel for the petitioner has submitted that the petitioner has not been named in the FIR, neither any narcotic drugs or psychotropic substances have been recovered from his possession. 5. The learned counsel for the petitioner further submits that the petitioner is the holder of a drug distributor license, which is valid till 19.02.2028. He further submits that the petitioner has been implicated in this case only on the basis of the statement made by the accused, from whose possession the contraband was recovered. He submits that apart from the Page No.# 3/7 aforesaid statement, there is nothing on record to implicate the petitioner in this case. 6. He further submits that in view of the ruling of the Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1”, the statement of the co-accused recorded during the course of the investigation is not admissible as evidence in trial involving offence under the NDPS Act, 1985 and in this case, there is nothing apart from the aforesaid statement. 7. The learned counsel for the petitioner has also submitted that in this case, in the notice issued to the relatives of the petitioner under Section 48 of the BNSS, 2023 no grounds of arrest were mentioned therein. 8. He submits that in view of the observations made by the Apex Court in the case of “Vihaan Kumar Vs. State of Haryana and Another” reported in “(2025) 5 SCC 799.” Even in the notice issued under Section 48 of the BNSS, 2023 which is served on the relatives/friends/nominated person of the arrested accused, the requirement of furnishing grounds of arrest is there and any violation of the said requirement would render the arrest of the petitioner illegal. 9. On the other hand, the learned Additional Public Prosecutor has produced the Case Diary of Tarabari P.S. Case No. 10/2025, and has submitted that the contraband involved in Page No.# 4/7 this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable in this case. He, however, fairly submits that the material against the petitioner at this stage of the investigation is only the statement of the co-accused, who has stated that he used to procure the drugs from the present petitioner. 10. The learned Additional Public Prosecutor has also submitted that in this case, there has been no violation of statutory requirement of furnishing grounds of arrest either to the petitioner under Section 47 of the BNSS, 2023 or under Section 48 of the BNSS, 2023. 11. The learned Additional Public Prosecutor further submits that the petitioner was earlier also found involved in NDPS Case, i.e. Barpeta P.S. Case No. 711/2022 under Sections 22(c)/29 of the NDPS Act, 1985. He therefore, opposed the grant of bail to the petitioner at this stage. 12. In response to the submissions made by the learned Additional Public Prosecutor, the learned counsel for the petitioner has submitted that in the case, in which the petitioner was earlier arrested, he has already been acquitted by the judgment dated 20.02.2023 in Special (NDPS) Case No. 90/2022, passed by the learned Special Judge, Barpeta. 13. I have considered the submissions made by the learned counsel for both sides and have gone through the Page No.# 5/7 Case Diary of Tarabari P.S. Case No. 10/2025. 14. It is apparent from the Case Diary that the contraband seized in this case was recovered from the possession of one Prasenjit Das, who has been named in the FIR as an accused. Nothing was recovered from the present petitioner. It also appears from the Case Diary that even after 161 days of detention of the present petitioner, apart from the statement of the co-accused, no other materials is there in the Case Diary, which incriminates him in the aforesaid case. 15. The Apex Court has clarified in the judgment of the “Tofan Singh Vs. State of Tamil Nadu (supra) that the statement of the co-accused cannot be used as an evidence in a trial involving offence under the NDPS Act, 1985. 16. Though such a statement may give lead to the Investigating Authority to collect admissible evidence, however, in this case, even after detention of the petitioner for the last 161 days, the Investigating Agency is unable to collect any admissible evidence against the petitioner which would implicate the complicity of the petitioner in the offence alleged in this case, under such circumstances, this Court is of the considered opinion that the petitioner is entitled to get bail in this case on that ground only. 17. As the petitioner is found entitled to get bail, the second plea taken by the petitioner regarding violation of the Page No.# 6/7 requirement of Section 48 of the BNSS, 2023 is not required to be discussed in this case. 18. In view of the above discussions, the above- named petitioner is allowed to go on bail of Rs. 50,000/- with a suitable surety of like amount, subject to the satisfaction of the learned Special Judge, Barpeta with following conditions that:- i. That the petitioner shall cooperate in the trial of Tarabari P.S. Case No. 10/2025 under Section 22(C) of the NDPS Act, 1985. ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, mobile number, and other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any offence while on bail. 19. With the above observation, this bail application is Page No.# 7/7 accordingly, disposed of. 20. Send back the Case Diary. JUDGE Comparing Assistant